Friday, 16 August 2013

Back in the late ‘80s I knew a young woman who had been the
victim of a road “accident”.She had
been hit by a car while crossing a zebra crossing in Islington.By the time I met her she had made a full
recovery in purely physical terms, but she had suffered brain injury.The prognosis was that the damage would never
entirely repair, but she could make a very substantial recovery, in time, with
the right treatment and therapy. At this
stage, she was only in the early stages of that recovery and in many ways her
condition was similar to someone who had suffered a mild stroke – slurring words,
a bit shuffling, somewhat puzzled and confused expression.

I lost touch with her and her boyfriend so I don’t know how
things turned out in the end, but at that time they were very concerned for her
future.In theory, she could obtain the
therapy she needed on the NHS but then, as now, she could be in for a long
wait. Then, as now, she could accelerate
the process by going private, but of course for that you need money. They had entered a claim against the driver
but then, as now, the progress of a civil damages action was slow and uncertain.Quite conceivably, the NHS waiting list would
be shorter than the delays in the claim and any litigation.

Why should this be?Because under English (and indeed Scottish) civil law of “tort” (ie a
civil wrong) it is necessary for the plaintiff to prove firstly that he or she
has suffered damage, and secondly that this damage is due to the negligence or
recklessness, ie the tort, of the respondent in the claim.Unlike a criminal trial, it is not necessary
to prove the case “beyond reasonable doubt” – the courts make a finding on the
balance of probabilities which is clearly a lower hurdle.However, the key point is that the respondent
does not have to prove his “innocence”, rather the plaintiff has to prove (to a
point) the respondent’s “guilt”.(In
those days, there was no contingent fee legal service available so the
plaintiff’s starting point was:how am I
going to afford to bring a claim?Sadly,
it appears that we may be returning to those dark days when those without cash
had no access to law.)

That raises a number of problems.One obvious problem is that the necessity to
cast blame naturally raises the temperature of the proceedings. Few people will readily admit such gross
errors. That is human nature, and if you have to couch things in terms of
recklessness or negligence, hackles are bound to rise.I well remember the feeling I had when once,
sitting at the wheel of my car in stationary traffic outside Clonmel, County
Tipperary, I was shunted from behind and struck the car in front, and then got
a solicitor’s letter alleging whiplash injury to the occupants of the car in
front “due to the reckless or negligence of said person (ie, me)”.My firm’s company car insurance manager had
to help me to calm down and accept this is only a game. (The Irish Republic used to be notorious for
dubious whiplash claims, and motor insurance premiums there reflected that.I don’t know whether that is still the case).

Probably more significant however is that fundamental rule
of car insurance companies when involved in an incident – Never Admit
Anything.The plaintiff has to make a
case against the respondent, through his/her insurer, and the insurer will
fight the claim tooth and nail. It isn’t
personal – like a New York wise guy whacking a gang rival they would probably
apologise and say “it’s just business”.Paying out claims reduces profits – not good!

So, how does almost every country in Europe resolve this
problem, of the weak confronting the mighty to obtain fair compensation?They have a law of “strict liability”, that’s
how.The terms vary from country to
country, but in essence there is a presumption that the stronger party has a
strict liability to the weaker one, regardless of who is to “blame” .We mostly know of it applied to road
accidents, but in many cases it extends to other fields such as medical
negligence claims against doctors and hospitals.It has a number of advantages:it helps to secure swifter and more certain
recompense for an injured party, and it avoids the need to play the blame
game.The respondent can shrug and say “it’s
just how it works”.As the liabilities
in question are required by law, under pain of criminal prosecution, to be
covered by insurance, the respondent need have no fear for his finances beyond
the loss of some no-claims discount at his next renewal. The assumption of this liability is estimated
to add, if introduced here, about £50 to the average annual motor premium –
that is barely half what the insurers say they have to charge simply to fund
fraudulent whiplash claims.

The UK is one of only five countries in the EU which do not
have some form of strict liability.Three
of the other four are Ireland, Malta and Cyprus – all nations founded on the UK
system of common law instead of the standard continental system of (Napoleonic)
Civil Law.The fourth is Romania –
hardly a shining example to uphold!

OK, enough of the preamble.Strict liability is widely opposed in the UK.Most of the opposition is from the “usual
suspects” – motoring organisations, the insurance industry (which would have to
pass on the cost to policyholders), elements of the press, mainly the
right-wing end such as the Daily Mail who, I suspect, know which side their
bread is buttered with regard to advertising revenues.

But stop, who is this, also (apparently) opposing strict
liability?Pro-cycling advocacy
groups!Yes!Apparently they consider it a distraction,
and a way for government to take a cop-out from addressing the real issues of
danger facing cyclists, namely the mixing of small, slow, vulnerable road users
with fast, heavy, dangerous ones, which can only be adequately fixed through
proper measures to segregate the two where possible, and to calm the dangerous
element where not.

Amen to that, I say.I wholeheartedly agree that the UK must urgently move towards a northern
European model of cycle infrastructure, probably following the Dutch model
although we should also look at others such as the Danish approach.But, when it comes to discussion of strict
liability, I sometimes feel that campaigners are only seeing it through the
spectrum of cycling.This is exemplified
by the post by “Freewheeler” – “what will not bring about mass cycling (No N) –
Strict Liability”.They are ignoring the
implications for other road users – pedestrians, or indeed occupants of passenger
cars who get into a smash with a cement truck, who would also be covered by
strict liability.

You could say that the physical measures advocated for
cycling would greatly improve the safety of these people too.I agree – and the Dutch approach to road
design was never exclusively about cyclists, taking consideration for
pedestrians, children, the elderly etc too.It is also fair to say that, in this scheme of strict liability which would
impose the same obligations on cyclists in their interaction with pedestrians,
the risks pedestrians face from cyclists are negligible compared with what they
face from motorists – in the decade ended 2007, according to statistics
released to Parliament by then transport minister Jim Fitzpatrick, a pedestrian
was two hundred and sixty three times as likely to be killed by a motor
vehicle as by a cyclist, and one hundred and thirty times as likely to
be seriously injured.

This, apparently, justifies cyclists not being required to
have third party insurance.

Well, while the risk of suffering life-changing injury at
the hands of a cyclist is indeed vanishingly small, what if you were one
of that vanishingly small minority? Your
injuries might well require a six or even seven figure sum of compensation to
enable you to live a satisfactory life with the consequences of those injuries.The number of people who, without insurance,
would have the resources to pay out on a claim or judgement of that scale must
be very few indeed, especially as the courts will certainly not visit the sins
of the cyclist on his/her family by grabbing their principal asset, often their
home.To say that cyclists should not
have some form of insurance cover simply because it is unlikely that they will
need it is a cop-out. Most insurance is
taken out despite a perception that it isn’t really necessary, but just in
case.

Cycling groups will of course then say that forcing cyclists
to have insurance (some, myself included, do, mainly through membership of the
CTC, LCC or British Cycling) would be poor public policy because it would
discourage people from taking up cycling.The same is probably true about compulsory cycle helmets, licensing and
one or two other measures favoured by UKIP.Furthermore, it doesn’t address the position of child cyclists, who
cannot personally be held liable for a civil claim under our system.

I accept that argument, but I don’t think we can leave it at
that.There has to be another way.There already exists a fund, which motor
insurers are obliged to pay a levy to, which deals with compensation to victims
of uninsured drivers, of whom there are estimated to be up to a million in the
UK (I wonder how much that adds to the average motor premium???)Perhaps a similar fund could be established to
cover claims for injury caused by cyclists.Or, “Schrödinger’s Cat” comments that he thinks the Dutch have a system
whereby cyclists receive insurance through some form of social levy, rather
like the state-sponsored compulsory health insurance policies which are used to
fund the health systems in most mainland European nations.Given that (as also pointed out by cycle
campaigners) individuals could incur liabilities to compensate for injury in
other capacities totally unrelated to cycling, for example as householders
failing to deal with a trip hazard in their front yard, perhaps there is a case
for a compulsory levy to cover insurance for all types of third party liability
which are not covered by specific provisions such as road traffic law?